Kruse Concepts v. Shelter Mutual Insurance

• Decision Date: 02 May 2000
• Parties: (Mo.App. E.D. 2000) . Kruse Concepts, Inc., Plaintiff-Appellant, v. Shelter Mutual Insurance, Defendant-Respondent. Case Number: ED76427 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

16 S.W.3d 734 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Kruse Concepts, Inc., Plaintiff-Appellant, v. Shelter Mutual Insurance, Defendant-Respondent.

Case Number: ED76427

Missouri Court of Appeals Eastern District

Handdown Date: 05/02/2000

Appeal From: Circuit Court of Jefferson County, Hon. M. Edward Williams

Counsel for Appellant: Blair Kenneth Drazic

Counsel for Respondent: Steven Howard Schwartz and Thomas Michael Ward

Opinion Summary: Kruse Concepts appeals summary judgment for Shelter Mutual Insurance in Kruse Concepts' suit for tortious interference with its fire restoration contract to repair the home of Ronnie Moses.

AFFIRMED.

Division Two holds: (1) An insurer's estimate of the amount of loss incurred by its insured as a result of fire damage to the insured's home is a matter of opinion, not fact, and accordingly cannot be a misrepresentation of fact. (2) The tort of bad faith does not exist in Missouri with respect to first party claims by an insured against an insurance company. (3) An insurer has an economic interest in the amount of its insured's loss for which it has a contractual duty to compensate its insured, and absent any evidence of improper means in interfering with a contract between its insured and a third party contractor, no action for intentional interference with contract lies.

Opinion Author: Sherri B. Sullivan, Judge

Opinion Vote: AFFIRMED. Crane, P.J., and R. Dowd, J., concur.

Opinion:

Kruse Concepts (Appellant) appeals from a summary judgment granted to Shelter Mutual Insurance (Respondent) in Appellant's suit against Respondent alleging tortious interference with its fire restoration contract to repair the home of Ronnie Moses (Moses). We affirm.

Respondent issued a homeowner's insurance policy to Moses, which provided coverage for property damage caused by fire. While the policy was in effect, fire damaged a portion of Moses' home. On August 20, 1996, Moses contracted with Appellant, a fire and water restoration contractor, to restore the fire damaged portions of his home. Moses and Appellant did not agree at that time to a price term, which was to be based upon "The Blue Book, Inc. rates."

Appellant and Respondent attempted to agree on the scope and cost of repairs necessary to restore Moses' home. Appellant and Respondent agreed that Appellant would replace the entire roof for $7,590.00. Appellant repaired the roof. Appellant and Respondent never reached an agreement on the scope and cost of restoration of the rest of the damaged portions of the house. Appellant provided its initial estimate of the cost of repair work. Respondent provided its estimate of $18,778.00. Appellant then provided a revised estimate of $29,749.00. Respondent provided its own revised estimate of $19,309.00. Despite their inability to reach an agreed upon estimate, Respondent gave Appellant $10,000.00 as partial payment in order to begin the work. Respondent again revised its estimate, based on the opinion of an unbiased, independent contractor, to $20,359.00.

Moses fired Appellant in November of 1996. Moses testified by deposition that he fired Appellant because of poor workmanship by Appellant's employees and additional damage to his property caused by Appellant's employees. Specifically, Moses testified that: (1) Appellant cut some of the roof rafters improperly, (2) Appellant installed the wrong type of roof vent, (3) Appellant improperly installed the electrical outlets in the bathroom, (4) Moses did not like some of Appellant's drywall work, (5) Appellant damaged some of Moses' property and never fixed it, and (6) Appellant's workers sometimes did not show up or were late.

Despite Moses' testimony, Appellant maintains that Moses terminated their contract because Respondent provided Moses with a bad faith estimate of his damages and announced that it would pay no more than the bad faith estimate, with the purpose of interfering with Appellant's contract. Appellant filed suit against Respondent, alleging that Respondent had intentionally and without justification caused Moses to terminate the restoration contract with Appellant. Respondent filed a motion for summary judgment. In response to the motion, Appellant filed an affidavit of its President, David Kruse (Kruse). In his affidavit Kruse stated that:

(1) he had been in the construction/restoration business for seven years and was familiar with the prevailing prices in the area of Moses' home,

(2) he had prepared several estimates and had submitted them to Respondent's claim adjusters, and Respondent had faxed estimates to him,

(3) he repeatedly protested that the estimates of Respondent were incorrect,

(4) on October 22, 1996, [Respondent] sent a letter to Kruse, which showed on its face a copy to Ronnie Moses, indicating that the only payments that would be made would be based upon the estimate of an unbiased contractor that had evaluated the loss,

(5) a copy of the estimate was enclosed, and it was very similar to [Respondent's] estimate,

(6) based upon his knowledge and experience, he was of the opinion that a claim adjuster of "even low competence would immediately know that all of [Respondent's] estimates were well below the honestly debatable range for the restoration of the Moses' home and also they did not include work that any honest adjuster would acknowledge needed done,"

(7) after having received [Respondent's] letter and estimate that Moses had called him and told him that he did not think the estimate was fair,

(8) Kruse advised Moses that Appellant would be willing to appraise the loss under the appraisal terms of the insurance policy and that Appellant would accept, as complete payment, whatever figure the appraisal determined,

(9) Moses agreed to the appraisal, however a few days later Moses called and his attitude had completely changed,

(10) Moses indicated that after calling [Respondent] that he would not appraise and that [Respondent] had told Moses that Appellant would take Moses to court to pay any of the charges above the final estimate,

(11) Moses indicated that [Respondent] had suggested Moses repair his house by using some of the insurance proceeds he received for damaged personal property, specifically, a pool table,

(12) Moses said to Kruse that he was tired of fighting with [Respondent], was worried about being canceled, and told Kruse to do no further work on the job,

(13) prior to that conversation [Moses] had voiced no problems with Appellant's work,

(14) at all times [Respondent's] adjuster and claims supervisor acted in a hostile and recalcitrant manner, and

(15) Appellant would have made additional money had it been permitted to complete the job.

According to Moses' deposition testimony, nothing Respondent said or did encouraged or caused him to terminate his contract with Appellant.

On March 6, 1997, Appellant filed suit against Respondent, alleging that Respondent had intentionally and without justification caused Moses to terminate the restoration contract with Appellant. Respondent filed a motion for summary judgment. The trial court denied Respondent's original summary judgment motion. After further discovery, Respondent refiled its summary judgment motion, and attached thereto Moses' deposition, portions of Kruse's deposition, and other exhibits. Appellant filed a response opposing the motion to which he attached the Kruse affidavit set out above and other exhibits. The trial court granted this motion. Appellant timely filed this appeal.

Summary judgment is designed to permit the Court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993); Rule 74.04. When considering appeals from summary judgment, the appellate court will review the record in the light most favorable to the party against whom judgment was entered. Id. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment. Id. This makes appellate review essentially de novo. Id.

In its point on appeal, Appellant claims the trial court erred in granting summary judgment to Respondent because Kruse's affidavit establishes questions of material fact in that the affidavit: (A) includes expert evidence that the estimate...